Bulkley v. Boyce

Hardin, P. J., Section 899 of the Code of Criminal Procedure declares The following are disorderly persons: (1.) “ Persons who actually abandon their wives or children without adequate suqrport, or leave them in danger of becoming a burden upon the public, or who neglect to provide for them according to their means.” (2.) “Persons who threaten to run away and leave their wives or children a burden upon the public.” Section 900 authorizes a warrant for the arrest of such persons upon complaint on oath to a justice of the peace * * * or recorder. Section 901 provides that “ if the magistrate be satisfied * * * he may require that the person charged, give security by a writen undertaking, with one or more sureties approved by the magistrate to the following effect: (1.) “ If he be a person described in the first or second subdivision of section 899, that he will support his wife and children, and will indemnify the county, city, village or town against their becoming within one year chargeable upon the public. (2.) “ In all other cases that he will be of good behavior for the space of one year, or that the sureties will pay the sum mentioned in the undertakiug and which must be fixed by the magistrate.” Section 901 provides that the undertaking mentioued in section 901 is forfeited by the commission of any of the acts which constitute the person by whom it was given a disorderly person. If we turn back to section 899, we find that a “ neglect to provide for them (wife and children) according to their mecms,” is one of the acts named, and that an abandonment of wife and children “ without adequate support ” is another, and threatening to run away and leave a wife and children “ a burden upon the public ” is another. Reading these provisions together, it is manifest that it is provided by the statute that husbands are required to provide for wives and children “ according to their means,” and that an abandonment of them without adequate support establishes that the husband so abandoning is a disorderly person within the statute. In defining the words “ adequate support,” and the words “ according to their [262] means,” found in subdivision 1 of section 899, reference may be had to the rules of law existing before the statute. The husband was bound to furnish a wife’s necessaries or support “ suitable to her situation and his condition in life.” (Theriott v. Bagioli, 9 Bosw., 581; 2 Kent’s Com., 133, § 28.) Evidently the statutes quoted were passed to authorize an enforcement of that duty. When we construe section 904 with the preceding sections, it is evident that the undertaking to be given is forfeited when the husband fails or neglects to provide for the wife according to his means. We are brought to consider the undertaking given with the object of the statutory provisions in view, and finding in section 899, that it is his duty to give such support as his means will allow, we see that after the undertaking is executed it is such a neglect as works a forfeiture thereof. (§ 904.) These views lead us to the conclusion that the undertaking now before us ought not to be avoided and held invalid because it contains the words “ according to his means.” The undertaking accords with the requirements of the statute under which it was given. It is not against public policy, as in the case of Richardson v. Crandall (48 N. Y., 348). This case is unlike Spinney v. Thurber (33 Hun, 448). There the order prescribed a penalty of $250. The bond taken was $500. It was given under chapter 111 of the Laws of 1882, being a special statute as to Kings county, and the court said in that case “ the order is the only basis for the bond, and a bond in excess of the order is void under the statute above cited.” In the case in hand the undertaking recites an order in exact accordance with the condition of the undertaking. As we are of the opinion that the undertaking is in accord with the statute under which it was taken and given, we think the trial court fell into an error in declaring the undertaking invalid and void. Judgment is reversed and a new trial ordered, with costs to abide the event. Follett and Martin, JJ., concurred. Judgment reversed and a new trial granted, with costs to abide the event.